Jury trial procedure (W15)

Question 1

D15.82 - Presence of the accused at trial

Answer 1

• General principle: an accused should be present at trial.
• Attendance of the accused is secured by the magistrates remanding in custody or on bail when the case is sent for trial.
• If having been bailed, the accused fails to attend on the day, a bench warrant may be issued for the accused’s arrest under s.7 BA 1976
• The accused must be present at the commencement of a trial on indictment in order to plead, and must also be present throughout the trial.
• The court must not proceed if the accused is absent, unless the court is satisfied that the accused has waived the right to attend and the trial will still be fair despite the accused’s absence.
• By extension, this means that the judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence.

Question 2

D15.83 - Exceptions to the principle

Answer 2

The accused’s presence may be dispensed with in exceptional circumstances. The situations in which the court may be justified in proceeding without the accused are as follows:

(a) as a result of the misbehaviour of the accused
(b) where his absence is voluntary
(c) where the accused is too ill to attend
(d) following the death of the accused.

Question 3

D15.84 - Principles to be considered in the absence of the accused

Answer 3

The following principles should be applies when dealing with an absent defendant:

(a) An accused has, in general, a right to be present at the trial and a right to be legally represented.
(b) Those rights can be waived, separately or together, wholly or in part, by the accused:
(i) they may be wholly waived if, knowing or having the means of knowledge as to when and where the trial is to take place, the accused is deliberately and voluntarily absent and/or withdraws instructions from legal representatives.
(ii) they may be waived in part if, being present and represented at the outset, the accused, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws instructions from legal representatives.
(c) The trial judge has discretion as to whether a trial should take place or continue in the absence of an accused and/or their legal representatives. The judge is required to warn the accused at the PTPH of the risk of the trial continuing in the defendant’s absence.
(e) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the accused is unrepresented.
(e) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case.
(f) If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, the judge must ensure that the trial is as fair as the circumstances permit. In particular, reasonable steps must be taken, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the accused as the evidence permits. In summing up, the judge must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

Question 4

D15.84 - Factors to be taken into account when deciding whether to proceed in the absence of the accused

Answer 4

(i) the nature and circumstances of the accused’s behaviour and in particular, whether the behaviour was deliberate, voluntary and plainly waived the right to appear;
(ii) whether an adjournment might result in the accused being caught or attending voluntarily;
(iii) the likely length of such an adjournment;
(iv) whether the accused, though absent, is, or wishes to be, legally represented at the trial or has waived the right to representation;
(v) the extent to which the absent accused’s legal representatives are able to present the defence;
(vi) the extent of the disadvantage to the accused in not being able to give his/her account of events, having regard to the nature of the evidence;
(vii) the risk of the jury reaching an improper conclusion about the absence of the accused;
[(viii) the seriousness of the offence;] unlikely to apply
(ix) the general public interest and interest of the victim and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one accused and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

Question 5

D15.86 - Misbehaviour of the accused

Answer 5

• If the accused behaves in an unruly fashion in the dock e.g. shouting out, trying to intimidate jurors or witnesses, and makes it impracticable for the hearing to continue, the judge may order that the accused be removed from court and the trial proceed in their absence.
• In practice, the judge would warn the accused before taking this step. It may be appropriate for them to return to the dock at a later stage if they undertake not to repeat the behaviour. Unruly behaviour may also be deterred by the threat of holding the accused to be guilty of contempt of court.
• An accused should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative to visible restraint.
• If the accused refuses to leave the cells, the judge is entitled to proceed without them where the right to be present has been unequivocally waived.

Question 6

D15.87 - Voluntary absence of the accused

Answer 6

• If the accused was present for the commencement of the trial but later goes missing, either by escaping from custody or failing to surrender having been bailed, the judge has a discretion to complete the trial in their absence.
• Sentence may also be passed in the accused’s absence.
• The same applies where D has voluntarily rendered himself incapable of participation in the trial through intoxication or through self-induced drug psychosis.
• A trial can proceed in the absence of an accused who has not been arraigned, but the court must be satisfied the accused has waived the right to be arraigned. If the indictment has been amended after the accused absconded, it could not necessarily be assumed that the accused has waived the right on the amended indictment.
• The alternative is to discharge the jury from giving a verdict, thus allowing a retrial to take place when the accused’s presence has been secured. This requires not only an assessment of the adequacy of evidence to explain the accused’s absence, but also an assessment of fairness.
• Whether or not the court proceeds, the judge will almost certainly issue a warrant for his arrest under BA 1976 s.7

Question 7

D15.89 - Sickness of the accused

Answer 7

• If the accused’s absence from court is for reasons beyond the accused’s control, the trial may not continue in the absence of the accused unless the accused consents.
• Should the accused become ill during the course of the trial, the judge must either adjourn the case until they recover or discharge the jury.
• If the court is not satisfied with the adequacy of the evidence of illness, it should give an opportunity for further evidence to be provided before commencing the trial in the accused’s absence, and must always have regard to fairness.
• Possible exceptions to this:
  (a) If there are several accused and one falls sick, the trial may continue in their absence provided that the evidence and proceedings relate entirely to the cases against the co-accused and have no bearing on the absent accused’s case.
  (b) Where D’s voluntary ingestion of drugs makes his participation in the trial impossible, the situation may well be otherwise.
  (c) Where D had a heart condition preventing his attendance but it was considered that his counsel were able to argue his case effectively and he was given the opportunity to give written evidence.
• It is not enough for an accused to be physically present if they are too unwell to pay proper attention to proceedings and give instructions to legal representatives.

Question 8

D17.17 - Treatment of unrepresented accused

Answer 8

• If an accused is not legally represented, the court will seek to give the accused such assistance as may seem appropriate.
• Where the accused dismisses counsel and/or solicitors during the course of the trial and the accused remains entitled to public funding, the judge may grant an adjournment for the accused to be represented, though there is no requirement that they must do so.

Question 9

D17.19 - Restrictions on the accused

Answer 9

• The trial judge has a role in asking questions of witnesses on behalf of an unrepresented defendant in the defendant’s interests. Beyond that, there are limitations on what a defendant can do personally.
• Unrepresented defendants are prohibited from cross-examining complainants and child witnesses in trials for certain offences.
• The court also have a power to prohibit cross-exam of witnesses by unrepresented defendants if satisfied that the circumstances of the witness and the case merit it, and that a prohibition would not be contrary to the interests of justice.
• There are provisions for the appointment of representatives to conduct cross-examinations on behalf of unrepresented defendants.

Question 10

D3.66 - Abuse of process: the power to stay proceedings

Answer 10

• Once an indictment has been preferred, the accused must be tried unless:
  (a) the indictment is defective
  (b) a ‘plea in bar’ applies (e.g. autrefois acquit)
  (c) a ‘nolle prosequi’ is entered by the A-G to stop proceedings
  (d) the indictment discloses no offence that the court has jurisdiction to try
  (e) it would be an abuse of process to continue with the prosecution.
• Where proceedings would be an abuse of process, the court may order that they be stayed. The usual effect of this is that the case against the accused is dropped permanently.

Question 11

D3.67 - The meaning of ‘abuse of process’

Answer 11

Two categories of case:

(1) where it would be impossible to give the accused a fair trial
(2) where it offends the court’s sense of justice and propriety to be asked to try the accused

In the second category, the court is concerned to protect the integrity of the criminal justice system. A stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice. Examples of this include cases where there has been ‘bad faith, unlawfulness or executive misconduct.’

Question 12

D3.68 - Clarification on stays for abuse of process

Answer 12

• The first category focuses on the trial process; the second is applicable where the accused should not be standing trial, irrespective of the fairness of the actual trial.
• The second limb requires a balance of competing interests, whereas the first does not.
• A judge does not have the power to refuse to allow a prosecution to proceed merely because he considers that it ought not to have been brought as a matter of policy. It is only if it amounts to an abuse of process and is oppressive and vexatious that the judge has the power to intervene.

Question 13

D16.10 - Opening speech

Answer 13

• ‘The purpose of the prosecution opening is to help the jury understand what the case concerns, not necessarily to present a detailed account of all the prosecution evidence due to be introduced.’
• The prosecution should identify the issues in the case as well as providing a concise outline of the evidence which they propose to call.
• The judge may also invite defence counsel concisely to identify what is in issue, in order to assist the jury following the prosecution opening.

Question 14

D16.11 - Emotive language

Answer 14

• In addressing the jury, prosecuting counsel’s role is that of a minister of justice who ought not to strive over-zealously for a conviction.
• Counsel should therefore avoid using emotive language liable to prejudice the jury against the accused.

Question 15

D16.12 - Submissions as to law

Answer 15

• The extent to which the prosecutor deals with points of law that may arise during the trial or possible defences which the accused is likely to raise is a matter for discretion, depending on the circumstances of the particular case.
• ‘The presumption should be that the opening address by counsel for the Crown should not address the law, save in cases of real complication and difficulty where counsel believes and the trial judge agrees that the jury may be assisted by a brief and well-focused submission.’
• If counsel deals with a matter of law, it is usual to remind the jury that matters of law are ultimately for the judge, and that counsel’s remarks should be disregarded insofar as they differ from the judge’s directions.

Question 16

D16.17 - Witnesses for the prosecution

Answer 16

• Having opened the case, prosecuting counsel call witnesses and read out any written statements admissible under exceptions to the rule against hearsay.
• Although counsel has the discretion not to call a witness, as a matter of practice the statements of all witnesses whose statements have been served should be called or read and counsel must exercise the discretion in a proper manner and not for ‘some oblique motive’ e.g. to surprise or prejudice the defence.

Question 17

D16.36 - Written statements in criminal proceedings

Answer 17

• CJA 1967 s.9 provides for the admissibility of written statements in criminal proceedings.
• In trials on indictment, it applies where the prosecution wish to adduce evidence additional to that served in accordance with procedure when the case was sent, or by way of a notice of additional evidence thereafter.
• The party proposing to tender the statement must serve a copy of it on each of the other parties.
• If one of those parties serves notice on the party wishing to serve the statement that they object to it going into evidence, the statement cannot be read at trial.
• Subject to special circumstances, objection must be made in 5 business days.

Question 18

D16.37 - s9 statements

Answer 18

• In effect, s.9 statements are admissible only if all the parties agree.
• Even if a statement is admissible under s.9, the court may require that the maker attend to give evidence, e.g. where the defence dispute the contents of the statement but failed to object through an oversight.
• Where objection has been taken, it remains open for the prosecution to seek to read the statement. The court is able to permit such a course where it is in the interests of justice.
• In that case, the court would consider the hearsay provisions under the CJA 2003 s.116 and 117.
• In any event, the trial judge will be wary about overriding the objections of the defence.

Question 19

D16.40 - Agreed facts

Answer 19

• As an alternative to the reading of witness statements, facts derived from them can be presented as agreed evidence.
• These are presented pursuant to CJA 1967 s.10
• Such admissions should be reduced to writing and provided to the jury providing they are relevant to the issues that they are to determine and do not contain inadmissible material.

Question 20

D16.41 - Standard procedure for objections to prosecution evidence

Answer 20

(a) The defence should notify the prosecution of their objection.
(b) Further or alternatively, defence counsel should inform prosecution counsel of the objection before the latter opens the prosecution case to the jury. In the opening, the prosecution makes no mention of the disputed evidence.
(c) At the point at which admissibility falls to be considered, the jury will withdraw to allow the matter to be resolved by the judge alone.
(d) If the admissibility raises collateral factual issues as to how it was obtained, it may be necessary to adduce those facts before the judge in the absence of the jury. This is known as a trial on the voir dire because the witnesses testify on a special form of oath. Both prosecution and defence are entitled to call witnesses. However, evidence should be limited to matters relevant to the admissibility of the disputed evidence.
(e) Whether or not there has been evidence on the voir dire, the parties make their representations to the judge about the admissibility of the disputed evidence.
(f) The judge announces findings on any factual issues arising on the voir dire and rules on whether the disputed evidence should be admitted or not.
(g) The jury return to court. If the judge rules against the disputed evidence, the jury will know nothing about it. If it is ruled admissible, the defence are still entitled to cross-exam on matters they raised on the voir dire, although this will go to weight rather than admissibility.
(h) The judge retains the discretion to review a determination on admissibility at a later stage.

Question 21

D16.51 - Editing of prosecution evidence

Answer 21

• Where the prosecution evidence as foreshadowed in the statements relied upon contains material which is of such a prejudicial effect that the jury ought not to hear it, the practice is for parties to edit the evidence by agreement before it is called.
• Counsel can confer at trial to ensure that the editing is done right. If necessary the judge can also play a part in the process.
• Treatment of statements served as part of the prosecution case where some of the material may be inadmissible or unduly prejudicial:
  (a) A composite statement can be prepared to replace several earlier statements made by a witness
  (b) A completely fresh statement can be prepared for a witness to sign, omitting those parts of the first one which are inadmissible or prejudicial.
  (c) The original can be tendered to the court unmarked and copies can be served on the defence and provided to the court, with passages struck out.

Question 22

D16.53 - Submission of no case to answer

Answer 22

After the prosecution have closed their case, the defence may submit that the evidence does not disclose a case to answer in respect of any or all counts on the indictment.

Question 23

D16.54 - Galbraith: Test for no case to answer

Answer 23

Galbraith:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will stop the case.
(2) Difficulty arises where there is some evidence but it is of a tenuous character, e.g. inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which the jury could come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

Borderline cases can safely be left within the discretion of the judge.

Question 24

D16.55 - First limb of Galbraith

Answer 24

e.g. where a key prosecution witness has failed to come up to proof, or where there is no direct evidence as to an element of the offence and the inferences which the prosecution ask for the court to draw from the circumstantial evidence are inferences which, in the judge’s view, no reasonably jury could draw. However, judges avoid taking into account defence evidence which is yet to be called and potential defences which have yet to be made out when making the assessment.

Question 25

D16.56 - Second limb of Galbraith

Answer 25

• This is when the judge considers that a conviction would be unsafe.
• This involves the court considering the quality and reliability of the evidence rather than its legal sufficiency.
• It is not appropriate to argue on a submission of no case to answer that it would be unsafe for the jury to convict. However, the second limb of Galbraith does leave a residual role for the court as assessor of the reliability of the evidence.
• They must consider whether the prosecution’s evidence is too weak or vague for any sensible person to rely on it.
• e.g. if the witness undermines their own testimony by conceding uncertainty on vital points, or if what the witness says is manifestly contrary to reason.

Question 26

D16.57 - Reliability of evidence under the second limb of Galbraith

Answer 26

If the evidence is ‘self-contradictory and out of reason and all common sense’, the judge could properly conclude that it was ‘inherently weak and tenuous’.

Question 27

D16.58 - Proper approach to a submission of no case to answer

Answer 27

(a) If there is no evidence to prove an essential element of the offence, a submission must obviously succeed.
(b) If there is some evidence which, taken at face value, establishes each essential element, the case should normally be left to the jury.
(c) If, however, the evidence is so weak that no reasonable jury properly directed could convict on it, a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts have shown to be of doubtful value (e.g. identification cases)
(d) The question of whether a witness is lying is nearly always one for the jury, save where the inconsistencies are so great that any reasonable tribunal would be forced to the conclusion that it would not be proper for the case to proceed on the evidence of that witness alone.

Having identified those general principles, the court should then consider various particular types of evidence and categories of cases.

Question 28

D17.7 - Defence opening speech

Answer 28

• If the defence intend to call evidence as to the facts of the case other than or in addition to the evidence of the accused, defence counsel has a right to an opening speech at the beginning of the defence case.
• If, however, the only defence evidence is to come from the accused and character witnesses, then counsel does not have an opening speech save where the judge invites counsel to identify what is in issue in order to assist the jury following the prosecution opening.
• The advantages of the defence doing so is such that ‘usually the court should extend such an invitation.’
• In an opening speech, defence counsel may both outline the anticipated defence case and criticise the evidence already given for the prosecution. However, the speech should not make assertions of fact that are not to be proved by evidence that is to come.

Question 29

D17.8 - The defence case

Answer 29

• Because the burden of proof is on the prosecution, the defence are never obliged to call evidence, and are not obliged to call the accused.
• Most defence witnesses are governed by the same rules and considerations as prosecution witnesses.
• The only additional limitation is the duty of the court to stop evidence being given which is irrelevant to the issues in the case, or where the court is being used as a political sounding board.

Question 30

D17.9 - Order of defence evidence

Answer 30

• The accused should normally be called before any other defence witnesses.
• The rationale for this is that while other witnesses are usually kept out of court until they testify, the accused has the right to be present throughout the trial, and would otherwise have the opportunity to adjust their evidence in accord with that of the witnesses.
• The court has the discretion to depart from this rule, e.g. to allow a witness whose evidence was not substantially disputed to testify out of the normal order if circumstances make that convenient to do.
• Psychiatric expert evidence in relation to an accused ought to follow on after the prosecution’s evidence of the offence and any evidence from the offender.
• Character witnesses must always be called after the accused unless there are other witnesses as to the facts.

Question 31

D17.12 - Decision to call the accused

Answer 31

• The decision whether or not to testify is for the accused.
• Where the accused decides not to , counsel should have that decision recorded and the accused sign it, giving a clear indication that (a) they have decided not to give evidence of their own accord, and (b) they have done that bearing in mind advice given by counsel.
• There is no right for the accused to give evidence twice.
• Failure to advise the accused properly about the advisability of testifying may in appropriate cases, constitute ground for the CoA to decide that a conviction is unsafe.

Question 32

D18.10 - Judge calling or recalling a witness

Answer 32

The court has a discretion to require a witness to give live evidence ‘on its own initiative.’ The power should be sparingly exercised and used only where it is necessary in the interests of justice.

Question 33

D18.13 - Discussion of the relevant law

Answer 33

• Prior to summing up or the first part of summing up if it is split, the court will almost always invite counsel, in the absence of the jury, to make representations on how certain aspects of the case should be dealt with. This is especially the case where there might otherwise be misunderstanding or doubt as to how points of law and evidence should be dealt with.
• Such a discussion should take place before speeches, which are required to be consistent with directions provided to the jury in a split summing up.
• Only in very exceptional circumstances would it be appropriate for the court to discuss the law with counsel after concluding the summing up and before the jury’s retirement.

Question 34

D18.14 - Assisting the court

Answer 34

• Counsel is under a duty to bring all relevant authorities to the court’s attention even if some are unfavourable to counsel’s own argument.
• Any procedural irregularity must also be brought to the court’s attention during the hearing and not reserved to be raised on appeal.

Question 35

D18.16 - Order of closing speeches

Answer 35

The prosecution speech is made first.

Question 36

D18.18 - Limitations as to content in closing speeches

Answer 36

• Neither counsel in a closing speech should allude to alleged facts or other matters which have not been the subject of evidence.
• Neither should a jury be invited to add a recommendation of mercy to their verdict should it be one of guilty.
• Advocates should not make personal criticism of their opponents.

Question 37

D18.19 - Prosecution counsel

Answer 37

• Prosecution should remember their roles as ministers of justice.
• Prosecution should not comment to the jury on the potentially serious consequences to police officers of their evidence being disbelieved, even where a police officer has raised the matter in evidence.
• Equally, prosecution counsel is not entitled to abandon or attack the credit of the prosecution’s own witness (unless leave has been given to treat the witness as hostile) and counsel should not invite inferences contrary to the evidence that has been called.
• Prosecution should not comment on the failure of an accused’s spouse or civil partner to give evidence. However, they are entitled to comment on the failure of the accused to answer questions in interview, or to give evidence.
• The prosecution may make ‘such comment as appears appropriate’, providing that the court grants leave, about the failure of the accused to serve a defence statement, or as to divergence between that statement and the accused’s evidence.

Question 38

D18.20 - Defence counsel

Answer 38

• In delivering the closing speech, defence counsel is not confined to putting forward the client’s version of events. Hypotheses may be advanced which go beyond this, always provided that other evidence has been called which supports such hypotheses.
• Defence counsel should not refer to the likely consequences of a conviction in terms of punishment as sentencing is no concern of the jury.
• Defence is entitled to comment upon their own client’s failure to give evidence.
• Counsel is also entitled to comment upon a co-accused not entering the witness box.
• The judge has no power to prevent or restrict such comment, but if it seems to the judge to have been unfair, they may comment on it personally.
• The trial judge has a duty to ensure that the defence case is accurately put before the jury even if this means intervention in defence counsel’s speech.

Question 39

D18.21 - Summing up: general matters

Answer 39

• The trial judge’s summing up conventionally falls into two parts, (1) a direction on the law and (2) a summary of the evidence.
• The court may split a summing up so as to address the law before the closing speeches of counsel and then turn to the facts after the speeches have been made.
• The use of written directions is also strongly advocated.
• It is also discouraged to commence a summing up or address an important aspect of one at a late hour or just before the weekend.
• Where the judge does not provide the summing up or parts of it in writing, both counsel should take a full note of summing up. This is especially important where the sentence is likely to be short. A good note may avoid delay in waiting for a transcript and thus expedite an appeal.

Question 40

D18.23 - Duties of counsel in relation to summing up

Answer 40

• Prosecuting counsel is under a duty to attend carefully to the summing up and draw any possible errors (whether of fact or law) to the judge’s attention at its close. The court is entitled to rely on such assistance.
• Defence counsel has been traditionally able to remain silent, if that is considered to be in the best interests of the client. However, this position has been eroded:
  (a) it is the duty of both prosecution and defence counsel to alert the judge to evidence on which the judge could find provocation, before the summing up, and if the judge agrees, remind them that statute requires the remaining issues to be left to the jury.
  (b) Defence counsel is under a duty to request a good character direction, if the accused was entitled to one, rather than waiting to make complaint later if one is not given.
• Dismissal of an appeal will not be automatic where defence counsel has failed to correct an error.

Question 41

D18.24 - Written directions

Answer 41

• In virtually all cases, the judge should provide the jury with a written list of questions (route to verdict), written legal directions and such other material as will assist them with their task, e.g. setting out the legal issues which must be proved in order to reach their verdict.
• Before providing the jury with their route to verdict, the judge should submit them to counsel, so that they can make suggestions and base their closing speeches upon the issues raised in the proposed directions.
• Failure of counsel to comment on such draft directions is not necessarily fatal to an appeal on any misdirection, but such failure is likely to affect the weight accorded to the deficiency.
• The judge is entitled to decline to provide the jury with written directions, even where they have been requested, but cases where written directions will not be required are very few, and their provision should be the norm.
• The jury should be given the written list at the start of the summing up, so that the judge can take them through the directions one by one, as each point is dealt with.

Question 42

D18.25 - Standard directions

Answer 42

• From the 1970s onwards, the Judicial Studies Board issued specimen directions in relation to the applicable law, and these are found in the Crown Court Compendium. The CoA continues to encourage the use of these standard forms through which directions on frequently recurring matters of law may be given.
• They are suggested as guidelines only, and judges should adapt them to the circumstances of the particular case.
• A trial judge’s direction not conforming to the standard direction is not and never can by itself be a ground of appeal.

Question 43

D18.26 - Directions as to the functions of judge and jury

Answer 43

• At the beginning of the summing up, the judge must direct the jury as to their respective roles and the different status of the two parts of the summing up: that part relating to law, on which the judge is the final arbiter, and the part relating to fact.
• If during the summing up, the judge expresses a certain view as to the facts or as to the significance of a piece of evidence but the jury disagrees, it is the jury’s view that matters.

Question 44

D18.27 - Burden and standard of proof

Answer 44

• Every summing up must contain at least a direction to the jury as to the burden and standard of proof, and as to the ingredients of the offence which the jury are called upon to consider.
• If the judge fails to properly direct the jury as to the prosecution (a) having the burden of proof or (b) having to discharge that burden beyond reasonable doubt or so that the jury is sure, a conviction is liable to be quashed.
• Judges are warned of the risks of deviating from this core direction, even in answer to a question from the jury as to the meaning of ‘sure.’
• In cases involving injuries to a small child, it is essential that a very clear direction should be given as to the burden of proof, as the jury tend to succumb to their emotions.
• Where the statute requires an accused to have an evidential burden to discharge, good sense directs that in appropriate circumstances the court should seek agreement that this burden had been discharged so that only the prosecution’s burden needed to be left to the jury.

Question 45

D18.29 - Ingredients of the offence

Answer 45

• The trial judge needs to direct the jury as to the ingredients of the offence charged, and tailor such directions to the actual issues in the particular case.
• It is insufficient for the judge to simply spell out the issue in the case. They are required to spell out the ingredients of the offence.
• It should also involve a succint but accurate summary of facts, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw.

Question 46

D18.30 - Failure to answer questions or give evidence

Answer 46

• ss.34 and 35 CJPO 1994 - the jury are entitled to draw such inferences as they deem appropriate from the failure of the defendant to answer questions in interview (s.34) or give evidence (s.35).
• Although not expected to identify every fact in relation to which inference might be drawn, the judge is required to identify significant facts relied upon and to remind the jury of any reason for silence advanced by the accused.
• A number of limitations to the requirement for a s.34 direction have been identified:
  (a) No inferences should be drawn from the silence in interview of an accused who does not give or call evidence, and has not advanced a positive case.
  (b) Where an accused’s account has changed between interview and trial, this was a matter on which comment can be made without need for a formal direction under s.34.
• Where such inferences should not be drawn, the jury should be specifically directed to that effect.

Question 47

D18.33 - Defences

Answer 47

• There is an obligation on the trial judge to give legal directions which apply to the defence advanced on behalf of the accused. Common defences to which this apply include:
  (a) self defence
  (b) alibi
  (c) loss of control
  (d) diminished responsibility
• Where an accused is unrepresented, the judge should also remind the jury to bear in mind the difficulties for the accused of representing themselves at trial.

Question 48

D18.36 - The facts

Answer 48

• The judge should remind the jury of and comment on the evidence.
• It is a procedural irregularity for the judge to sum up without a review of the facts.

Question 49

D18.37 - analysis involved in a judicial direction

Answer 49

In very simple cases, it may suffice for the judge to sum up the facts by reading out an abbreviated version of their note of the evidence. However, if the trial has been at all complex, judges must assist the jury by analysing the evidence and relating it to the issues raised. Merely reading a note in such circumstances has been criticised.

Question 50

D18.38 - Summarising the defence case

Answer 50

• It is party of the judge’s duty to identify the defence:
  (a) Where the accused has given evidence, it will be desirable to summarise that evidence.
  (b) Where the accused has given evidence and answered questions in interview, it may be appropriate to draw attention to consistencies and inconsistencies between the two.
  (c) When an accused is interviewed at length but does not give evidence, the judge has to decide how, fairly and conveniently, to place the interview before the jury.
  (d) When the accused has done neither, it will usually be appropriate to remind the jury of the counsel’s approach.
• It is desirable for the judge to give an overview of the defence case, in addition to weaving the defence case into the chronology of the prosecution evidence.
• Where the accused has said little or nothing in interview and has elected not to give evidence, the limits of the judge’s duty is to remind the jury of anything defence counsel has managed to extract from the Crown’s witnesses in cross-exam and any significant points made in defence counsel’s speech.

Question 51

D18.39 - Judicious judicial comment

Answer 51

• It is the judge’s duty to state matters ‘clearly, impartially and logically’, and not to indulge in inappropriate sarcasm or extravagant comment.
• However, provided it is emphasised to the jury that they are entitled to ignore opinions, the judge may comment on the evidence in a way which indicates their own view. Robust comments to the detriment of the defence case are permitted, provided the judge is not so critical so as to effectively withdraw the issue of guilt or innocence from the jury.

Question 52

D18.42 - Appointment of a foreman

Answer 52

At the end of the summing up, the judge should advise the jury to appoint one of their number to be their foreman. The foreman will act as their spokesperson and in due course, announce their verdict.

Question 53

D18.43 - Unanimity

Answer 53

• The judge should invite the jury to retire and make a unanimous decision.
• A failure on the part of the judge to give the jury the direction that their verdicts must be unanimous will not necessarily render a conviction unsafe.
• If the time comes when the judge will accept a verdict which is not unanimous, a further direction will be given.
• The judge should not, however, indicate the precise period which must elapse before a majority verdict becomes a possibility.

Question 54

D19.2 - Retirement of the jury

Answer 54

Once the jury retires to consider their verdict, it should not separate, one from another, and from the jury bailiffs. They must remain in the charge of the court through the bailiffs throughout.

Question 55

D19.18 - Questions from the jury

Answer 55

• Jury are permitted to ask questions of the judge during their retirement.
• Normal method of doing so is passing a note to the jury bailiff who takes it to the judge. These notes need to be timed and dated.
• Three propositions for a judge who receives a note from the jury who have retired:
  (1) If the communication raises something unconnected with the trial e.g. a request for one of the jurors to contact a family member, it can be dealt with without any reference to counsel and without bringing the jury back to court.
  (2) In almost every other case, the judge should state in open court the content and nature of the communication from the jury and seek the assistance of counsel. The assistance will normally be sought before the jury return to court, and then when the jury returns, the judge will deal with the communication.
  (3) Exceptionally, if the communication from the jury contains information which the jury need not, and should not have imparted e.g. the details of voting figures, then the communication should be dealt with in the normal way but without disclosing the information which the jury should not have revealed.

Question 56

D19.35 - Majority verdicts

Answer 56

• Usually the jury verdict should be unanimous.

- Some majority verdicts are permissible, subject to certain conditions being satisfied.

Question 57

D19.36 - Time requirement for majority verdicts

Answer 57

• A majority verdict may not be accepted unless the jury have been considering their verdict for such period as the court considers reasonable having regard to the nature and complexity of the case, being in any event not less than 2 hours.
• Time spent not actually deliberating is allowed for by setting this limit at 2 hours 10 minutes.

Question 58

D19.38 - Minimum number for acceptable majority

Answer 58

The minimum majorities permissible are 11-1 or 10-2, or in the case where one or more jurors have been discharged, 10-1 or 9-1. A jury reduced to a number of 9 must be unanimous.

Question 59

D19.39 - Statement of size of majority and minority in open court

Answer 59

• If, and only if, the verdict is guilty, the foreman of the jury must state in open court the number of jurors who agreed to and dissented from the verdict.
• Failure to comply with this will result in the conviction being quashed.

Question 60

D19.41 and 42 - Verdict of guilty of an alternative offence

Answer 60

Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him NG of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on indictment specifically charging that other offence.

Question 61

D19.58 - Judge’s judgment in directing jury as to alternative offences

Answer 61

• In summing up, the judge is not obliged to direct the jury about the option of finding the accused guilty of an alternative offence, even if that option is available to them as a matter of law.
• If, however, the possibility that the accused is guilty of the lesser offence has been obviously raised in evidence, the judge should, in the interests of justice, leave the alternative to the jury. This is the case even if neither prosecution nor defence counsel wishes the alternative offence to be left to the jury.
• It is important for the court to leave an alternative which does not require proof of specific intent where such intent was required for the charge on the indictment.
• The court should not take the initiative to add an alternative charge after the accused has given evidence.

Question 62

D19.69 - Procedure for returning the verdict

Answer 62

• The jury’s verdict is delivered in open court, in the presence of the accused.
• The person the jury has elected to be their foreman will state in response to questions from the clerk of the court whether they find the accused guilty or NG.

Question 63

D19.90 - Jury unable to agree

Answer 63

• If the jury cannot agree, the judge discharges them. The accused is not acquitted but may be retried by another jury.
• Whether to ask for a retrial is at the discretion of the prosecution. In the absence of exceptional reason to the contrary, it is the practice to have a retrial.
• If a second jury fail to agree, the prosecution would not usually seek a third trial but instead offer no evidence.
• In some cases however, a further trial may be proper e.g. if a jury had been tampered with, or some cogent piece of prosecution evidence has been discovered since. Whether it is an abuse of process for the prosecution to seek another trial depends on:
  (a) the overall period of the delay and the reasons for it
  (b) the results of the previous trials
  (c) the seriousness of the offence
  (d) the extent to which the case against the defendant had changed since previous trials.